Dismissed

Rajendra Prasad Son of Shri Babu Lal v. Shri Ravi Dutt Sharma Son of Shri Krishna Dutt Sharma

Rajasthan HC1 Apr 2019CW/3042/2019

Case brief

AI extract

What is this about?

The Rajasthan High Court dismissed a writ petition challenging the rejection of an application to appoint a commissioner before the framing of issues. The court held the application fell under Order 39 Rule 7 CPC, not Order 26 Rule 9 CPC, and found the learned judge correctly exercised discretion in declining the prayer.

What did the court decide?

The writ petition was dismissed, upholding the rejection of the application for appointment of a commissioner.

Rajendra Prasad Son of Shri Babu Lal Vs Shri Ravi Dutt… — Property and Title | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writs No. 3042/2019

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Rajendra Prasad Son Of Shri Babu Lal, Aged About 54 Years, By Caste Vaishya, Resident Of Khari Kuiya Mohalla, Kaman, District Bharatpur (Rajasthan).

¶4

Vipin Agrawal Son Of Shri Rajendra Prasad, Aged About 29 Years, By Caste Vaishya, Resident Of Khari Kuiya Mohalla, Kaman, District Bharatpur (Rajasthan).

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----Petitioners

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Versus

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Shri Ravi Dutt Sharma Son Of Shri Krishna Dutt Sharma, Aged About 50 Years, Resident Of Mathura Darwaja, Kaman, District Bharatpur (Rajasthan).

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Smt. Manju Sharma Daughter Of Late Shri Krihna Dutt Sharma, Aged About 47 Years, By Caste Brahmin, Resident Of Mathura Darwaja, Kaman, District Bharatpur (Rajasthan).

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----Respondents

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For Petitioner(s)	: Mr.	Raj Kumar Goyal
For Respondent(s)	:

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HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

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Order

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01/04/2019

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The petitioners by way of this writ petition assail the order dated 24.01.2019 whereby the application moved by the petitioners for appointment of Commissioner for inspecting the site during pendency of an application under Order 39 Rule 1 and 2 has been rejected.

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Learned counsel for the petitioners submits that the application moved under Order 26 Rule 9 CPC has to be construed

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(2 of 2) [CW-3042/2019]

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not only for appointing a Commissioner on the discretion of the court for its local investigation to be requested for elucidating any matter in the dispute.

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In the opinion of this court, the application is essentially moved not under Order 26 Rule 9 CPC but under Order 39 Rule 7 CPC where there is a power to the court for issuing orders for inspection of any property which is the subject matter of such suit or as to which any disputed question may arise. The stage for orders 26 Rule 9 CPC does not arise at the present stage and would be only when the issues in dispute have been framed. An application therefore for appointing Commissioner at the stage of Temporary Injunction has to be essentially construed as noted above.

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In view of the facts, which have been noted in the order, it is apparent that the petitioners seek to collect evidence through the Commissioner’s report in support of his T.I. application and therefore the Learned Judge has declined his prayer.

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In my considered opinion, Learned Judge has correctly considered the application and has rightly exercised his discretion to reject the application moved by the petitioners.

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The writ petition being devoid of merit is accordingly dismissed.

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(SANJEEV PRAKASH SHARMA),J

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N Gandhi/52

Rajendra Prasad Son of Shri Babu Lal v. Shri Ravi Dutt Sharma Son of Shri Krishna Dutt Sharma

Case brief

What is this about?

What did the court decide?

Rajendra Prasad Son of Shri Babu Lal v. Shri Ravi Dutt Sharma Son of Shri Krishna Dutt Sharma

Case brief

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What did the court decide?

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